The heightened pleading standard set forth by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal has become a familiar tool for defense counsel seeking to dismiss a complaint in federal court. But is what's good for the goose also good for the gander?
More and more, plaintiffs attorneys are moving away from merely playing defense and now use Twombly and Iqbal for their own offensive purposes: as the basis for a motion to strike affirmative defenses. A recent decision in the District of New Jersey highlights a growing split between trial courts around the country addressing this issue, and in particular between the U.S. Court of Appeals for the Third Circuit and other circuits. Several trial courts in the Third Circuit have read Twombly and Iqbal narrowly and refused to extend those holdings to affirmative defenses. Elsewhere, however, courts have granted motions to strike affirmative defenses for failing to plead sufficient facts.
